Week 2 - Constitutional law

Presidential system

• president is directly elected by the people

• president has own mandate

• president does not need approval from parliament to stay in power

• separation of executive and legislative powers

Parliamentary system charactaristics

• prime minister is chosen by parliament

• prime minister stays in power only when supported by parliament

• fusion of powers between the executive and legislative branches

semi-presidential system characteristics

• hybrid of parliamentary and presidential system

• president and prime minister

• prime minister is accountable to parliament

• prime minister appointed by the president

presidential attitude

president can chose to focus on foregn policy only in a semi-parliamentary system

executive presidency

president will also be responsible for policy in domestic field in a semi-parliamentary system

presidential attitude vs executive presidency, how it it chosen?

• depends on whether the president has a friendly parliamentary majority

• if president has parliamentary majority = can steer domestic politics

• if president does not have parliamentary majority = president will share power with parliament backed prime minister

European Union parliamentary features

• role of the European parliament = 

  • appoint the president of commission

  • hold the commission accountable + adopt a vote of no confidence

• EU commission + parliament + council have to collaborate to adopt legislation

European union presidential features

• independent president of european council

• appointed for 2.5 years (not elected)

EU legislative organs

• commission

• council

• parliament

EU commission (what it does + who is in it)

• proposes laws

• implements EU law

• manages the EU budget

• represents the EU internationally

• 1 commissioner per country

• each commissioner responsible for a policy area

European Parliament

• directly elected by EU citizens (every 5 years)

• shares law making power with the council

• approves, amends, rejects laws proposed by commission

• approves EU budget

• holds commission accountable (vote of no confidence)

European council

• NOT the same as the council of the European Union

• sets the overall political direction + priorities of the EU

• decides on treaties, new members and foreign policy

• does not make detailed laws

Trias politica

• legislative

• executive

• judicial

judicial

interprets and applies law

executive

enforcement and execution of laws

legislative

law making

institutional separation of powers

trias politica functions are allocated to different organs

personal separation of powers

different organs of trias politica should be staffed by different people

Dutch legislative branch constitution

Art. 81 C. = acts of parliament are executed by government + states general

Dutch executive branch (relevant articles)

Art. 92(2) + Art. 131 C.

Dutch judiciary branch (relevant articles)

Art. 112 + Art. 113 C.

“Checks and Balances”

• system by which separation of powers is upheld (trias politica)

• judiciary should be impartial and independent from government interference

Constitutional law

area of public law which regulates the relationship between organs of state (trias politica institutions) and citizens and state (fundamental rights)

Sources of constitutional law

• Constitution

• Customary (unwritten law)

Criteria for a state

1. Defined territory

2. Permanent population

3. Effective and independent authority

4. Recognition by other states (not a formal requirment)

where is criteria for a state outlined

Montevideo Convention art.1

meaning of an effective authority (montevideo convention)

internal authority which can make its own constituiton

meaning of an independent authority (montevideo convention)

no other state can make claim formal authority over its internal institutions

why is recognition by other states importnat

the state if formally recognized can enter diplomatic agreements

rule of law (“rechtsstaat”)

• no one is above the law

• state organs also abide by the law

elements of rule of law

1. Separation of powers (trias politica)

2. Legality

3. Fundamental rights

4. Judicial review

Legislative branch in the netherlands (Who does it consist of? What do they do?)

• government and states general

• make generaly binding regulations (GBR)

what does the states general consist of?

• bicameral

• first chamber

• second chamber

what does the government consist of?

• King

• Ministers

Where is the structure “bicameral” outlined in the Constitution

art. 51 C. 

Ministerial responsibility

ministers are responisble for acts of governemnt not king

where is Ministerial responsibility outlined in constitution

art. 42 C.

Generally binding regulations (GBR)

1. Written rule

2. Adressed to an indefinite number of people

3. Applicable in an indefinite number of cases

4. Binding = no deviation possible

Executive branch in the netherlands

• Government

• implements acts/statues

• makes decision for individuals

where is executive branch outlined in constitution

Art. 42 + 89, 97(2), 131 C.

Judicial branch in the netherlands

• main organ = judiciary

• resolves disputes in civil, criminal, and administrative courts

where is judicual branch outlined in constitution

Art. 112 + Art. 113 C. 

Why is trias politica not absolute in the netherlands (mention each branch)?

Legislative

• parliament and government make acts of parliament

• don’t always make GBR

• For example consent to royal marriage (Art. 28 C.) = which is not generally applicable

Executive

• government is co-legislator + independent rule making authority

• for example royal decrees = made just by the government

Judiciary

• the judiciary branch has sometimes an administrative action

• for example appointment of a guardian (decision) = not resolving conflict

Trias Politica decision model

1. What task is set out in the statement?

2. What organ/institution is mentioned in the statement?

3. what is the normal task of the organ/ institution is mentioned in the trias politica theory

Conclusion

• 1=3, the situation fits the trias poltica theory

• 1 not = 3, the situation is an anomaly does not fit with the original meaning of trias politica

Legality (main conditions)

1. All state activity needs a basis in law (external effect)

2. Organs of the state are bound by law (internal effect)

negative state activity

• nulla poene principle = no punishment without law

• Art. 16 C. = no retroactive effect, had to be prescribed at the time

positive state activity

• interference needs a basis in law

• interfering with persons right to have their body be inviolable

• Example = Fluoride Case

Organs of the state are bound by law

• principles of good governance 

• competent law making authorities

Attribution

original competence created in the constitution

• Formal legislator (art. 81 C.)

• Government (art. 89 C.)

• Provincial/municipal councils (art 127 C.)

• Water Boards (art. 133(2) C.)

Delegation

transfer attributed cometence + responsibility to a lower body

sub-delegation

transference of delegated competence + responsibility

Where are fundamental rights found in the dutch constitution

chapter 1

which treaties outline fundamental rights

• ECHR

• International Convention on Civil and Political Rights

• European Social Charter

What are 2 types of fundamental rights

• classic fundamental rights

• social fundamental rights

classic fundamental rights

• state is not allowed to interfere in these areas

• adressed to the citizen

• enforceable in court

social fundamental rights

• state is ordered to do its utmost to realize these rights

• instruction for the government

• not enforceable in court

can the government restrict absolute fundamental rights?

No

can the government restrict relative fundamental rights?

yes, only if there is a statutory basis

Judicial independence (+relevant article)

• appointed for life by royal decree

• legal status regulated by statue

• grounds for termination

  • resignation

  • pension age (70)

  • suspension or dismissal

• Art. 117 C.

Constitutional review netherlands (+ relevant article)

• Constitutional review is prohibited

• judges are not allowed to test acts of parliament against the constitution

• Art. 120 C.

“backdoor” method for constitutional review (+relevant article)

• if national law conflicts with international law, it cannot be applied

• courts can use international law to turn down a law instead of the constitution

• Art. 94 C.

Unitary state

sub-units recieve power from central authoruty

Federal state

sub-units have privilages which are outlined in the constitution as well as central authority

Confederation

• individual states that unite for a common action

• minimal loss of sovereignty

what type of system is the european part of the netherlands?

• constitutional monarchy = art. 24 C.

• parliamentary democracy = ch 3 C.

• decentralized unitary state = ch 7 C.

what type of system is the kingdom of the netherlands?

federation

parts of the kingdom of the netherlands

1. The Netherlands

2. Aruba

3. Curacao

4. Sint Maarten

5. Bonaire

6. Sint - Eustatius

7. Saba

Role of the king in the netherlands

• ratification of bills + constitutional amendments (art. 87 C.)

• Countersignature (art. 47 C.)

• ceremonial head of state (art. 42 C.)

Organic laws

• laws required by constitutional law in the form of a statute

• constutution gives the basic rule

• organic law gives the details

relevant legislation for constitutional law

the dutch constitution

First chamber

• 75 members

• indirect elections

• proportional representation

• accept/reject laws

Second Chamber

• 150 members

• direct elections

• proportional representation

• real political power

Rule of no confidence

• customary law

• second chamber can pass a vote of no confidence

• minister must resign